Page 93 - Texas police Association Peace Officer Guide 2017

United States and Mexico; (2) Claudia Reyna, who testified to being physically and mentally
abused by Villalobos as a result of her involvement in the drug smuggling; and (3) Julio Aguirre,
who met Villalobos on multiple occasions when traveling to Mexico after crossing the Texas
border with Leroy Milligan, one of Villalobos’s main co-conspirators. (concluding that the
evidentiary weight of testimony or in-court identifications of defendants was adequate to find
sufficient evidence of participation in conspiracy).

Villalobos draws the court’s attention to the inability of three witnesses to initially identify him
as “La Tripa” when first asked whether they saw “La Tripa” in court; this is not fatal. He points
to (1) Juan Rivas, who allegedly had an agreement to smuggle guns and drugs on behalf of
Villalobos and Lugo; (2) co-conspirator Milligan; and (3) Martha Perez-Lopez, Julio Salazar’s
mother and the individual who had previously rented her home in Mexico to Villalobos. Both
Rivas and Perez-Lopez, though with some initial uncertainty, identified Villalobos in court after
having previously identified him as “La Tripa” during a photo lineup occurring closer in time to
the conspiracy. (“[C]onvictions based on eyewitness identification at trial following a pretrial
identification by photograph will be set aside on that ground only if the photographic
identification procedure was so impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification.”); (reversing a conviction based on a witness’s
uncertain identification of the defendant where the witness solely stated that the defendant
looked “most like” the individual in question). Villalobos presented no evidence of an
impermissibly suggestive pre-trial photo lineup and the witnesses ultimately provided clear
testimony that Villalobos did in fact look like “La Tripa,” but with slight physical appearance
differences likely explained by the passage of time such as a change in facial hair. Rivas and
Milligan also identified photos found on Villalobos’s wife’s phone of him as “La Tripa.” (“In-
court identification is only one piece of all the evidence presented to the jury. Other
circumstantial evidence presented could have led a reasonable jury to find [defendant] guilty of
the charged crimes.”). We give no weight to Villalobos’s argument that the Government
presented insufficient evidence to link him to the charged conspiracies.

Villalobos’s second concern—that the prosecutor’s leading questions tainted the witnesses’
identifications of him—is similarly without merit. While testifying, Milligan and Perez-Lopez
noted that Villalobos’s appearance was slightly different from the “La Tripa” that they had
previously interacted with; nonetheless, each positively identified him based on their prior
interactions.

Finally, Villalobos argues that the Government failed to establish his responsibility for greater
than 1000 kilograms of marijuana. This too is of no moment. As we have previously held, “the
jury should determine the existence vel non of the conspiracy as well as any facts about the
conspiracy that will increase the possible penalty for the crime of conviction beyond the default
statutory maximum; and the judge should determine, at sentencing, the particulars regarding the
involvement of each participant in the conspiracy.” The amount of marijuana that Villalobos is
directly responsible for is not an issue for trial, but sentencing.

A Peace Officer’s Guide to Texas Law 88 2017 Edition